BVA9507079 DOCKET NO. 93-10 133 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to a right hip disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from June 1966 to April 1971. This appeal is before the Board of Veterans' Appeals (the Board) from an April 1992 rating decision of the Regional Office (RO) which denied service connection for bilateral knee disorders and a right hip disorder, secondary to the knee disorders. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for bilateral knee disorders because he repeatedly injured his knees while in service and continued to seek medical treatment for knee pain following service discharge. He also asserts that the pre- service injury to his right knee was an acute and transitory injury with no fracture and no residuals. The veteran further contends that service connection is warranted on a secondary basis for a right hip disorder. The veteran's representative requests that any and all reasonable doubt be resolved in the veteran's favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for service connection for bilateral knee disorders and secondary service connection for a right hip disorder. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A chronic knee or hip disorder was not present during service. 3. A current left knee disability has not been medically demonstrated. 4. A chronic right knee disorder was first demonstrated medically approximately 20 years after discharge from service, and is not medically shown to be related to any in-service occurrence or event. 5. A right hip disorder was first demonstrated medically approximately 20 years after service discharge and is not shown to be medically related to any in-service occurrence or event, or service-connected disability. CONCLUSIONS OF LAW 1. A chronic right knee disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1994). 2. A chronic left knee disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1994). 3. A right hip disorder was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 4. The right hip disorder is not proximately due to or the result of a service-connected disorder. 38 C.F.R. § 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. Furthermore, we conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may also be granted for disability which is proximately due to or the result of a service- connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Every veteran is presumed to have been in sound condition when enrolled in service except as to defects noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Medical facts and principals may be considered in determining whether an increase is due to the natural progress of the condition. 38 C.F.R. § 3.303(b). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. This means the base line against which the Board is to measure any worsening of a disability is the veteran's disability as shown in all of his medical records, not on the happenstance of whether he was symptom-free when he enlisted. Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991); Green v. Derwinski, 1 Vet.App. 320, 323 (1991). A review of the veteran's service medical records shows that the service entrance examination report, dated in June 1966, noted that the veteran had recurrent knee pain but there was no clear diagnosis. On the written medical history form, completed at the same time, the veteran indicated that he had surgery on one knee approximately 1 1/2 years earlier. The examining physician recorded that the veteran also indicated he had worn a cast for about 6 weeks, and was released from the doctor's care with no disability. The veteran had occasional pain and had been told that his left knee was not growing right. Service treatment records show that in July 1966 the veteran was seen with an injured knee that buckled and caused pain. He was noted to have a history of injury to both knees. X-rays of both knees were negative. In August 1966 the veteran complained of pain on the right knee, especially when squatting. X-ray of the right knee disclosed some narrowing of the knee joint space along the medial portion but no evidence of degenerative changes. In November 1966 he was treated for a right knee sprain following a roller-skating injury. The diagnosis was minimal right knee sprain. X-ray of both knees revealed no significant abnormalities. In July 1967 the veteran was again seen with complaints of significant right knee pain after a fall earlier that day. A history of a past auto accident which injured the same knee a full year before and again in basic training was noted. Slight pain in hyperextension was note. A second entry in July 1967 indicated that the veteran had injured both knees in the earlier auto accident and they were put in casts. He had not had any problems with the left knee since then, but he experienced problems off and on with the right knee. He had twisted the right knee again three days earlier. Examination revealed a tender inferior margin on the right patella. Range of motion was "o.k." and there was no crepitus or effusion. X-ray of the right knee revealed no significant abnormalities. In February 1969 service treatment records show that the veteran was treated for a sore left knee after playing basketball the night before. Physical examination was normal. The diagnostic impression was possible strained ligaments. In March 1969 he was treated again for right knee pain. The knee was stable with full range of motion and no effusion. The veteran's service medical records contain no additional record of any treatment for knee pain during service. The separation examination report, dated in April 1971, was normal with no defects noted. On an application for VA benefits, submitted in May 1971, the veteran indicated that he had injured his left knee prior to service in a bike accident. He claimed that his military duty aggravated his left knee disorder. He stated that he had been told by a service physician that he had arthritis in his right knee and that his left knee was also bothering him. He noted that the last treatment for the knees had been in 1969-1970 during service. In July 1979 the veteran was afforded a VA medical examination relative to his service-connected hemorrhoids. The examination report contained no reference to any knee or hip disorder or disability. In a written statement, dated in November 1991, the veteran indicated that he went on sick call numerous times in the service for a right leg problem involving shooting pains in the knee and leg. Recently it had become so bad he had to lift his leg to get in the car. He went to the VA medical center for treatment and was told that his right hip was completely "gone" and required a hip replacement. The veteran was afforded a VA medical examination in March 1992. The examination report noted complaints of right leg and hip problems for years and that the veteran claimed he was finally diagnosed with a deteriorating hip in November 1991. The report contained findings and diagnosis relevant only to the veteran's service-connected hemorrhoids; the veteran's claimed knee and hip disorders were not addressed. In May 1992, the veteran submitted a written statement that he had knee disabilities prior to service; however, they were further aggravated by his service duty. This duty included sports. At his separation physical examination he reported his knee problems and was told to go to the nearest VA medical center. He was scheduled to have a right hip replacement. He had been told by a VA doctor that his right hip problem could have been caused by his knee problems or vice-versa. He had also been told that his current hip disorder developed over 20 to 25 years. A letter from the veteran, dated in June 1992, stated that the veteran played baseball and basketball in service at the battalion level which required extensive travel to different bases. During that time he injured his knees. At his separation he did not receive a thorough physical examination. Since service he had returned to the VA hospital on many occasions for treatment of severe pain to his right knee and upper leg. At the time he was told it was a "pulled muscle." He had recently learned he had a collapsing hip which would require surgery within two years. A written statement from a childhood friend, dated in August 1992, indicated that the veteran had played sports every year except his sophomore and junior years of high school. He remembered the veteran being hit by a car in his sophomore year and wearing a cast. During their junior year he did very well in physical education class and seemed to have no residual difficulties from the accident the year before. After he met the veteran again years later he noticed that the veteran walked with a noticeable limp. It was also his understanding that the veteran had injured his knee playing in the service. A written statement from the veteran's father, dated in August 1992, indicated that the veteran injured his knee in his sophomore year in high school. It was treated and put in a supportive cast for a few weeks. He did not participate in sports in his junior year at his mother's insistence. However, in his senior year he participated in sports and was "allstate" in baseball. His knee was fine with no limitations. He knew that while in the service the veteran had received orders to play on several different sports teams. It was his belief that the veteran's knee was fine prior to service. The veteran testified at a personal hearing held in October 1992 that his right leg was placed in a cast at his mother's insistence after he was hit by a car while riding his bicycle. No bones were broken. Following that injury he returned to playing sports and had no problems with either leg prior to his entry into service. He first injured his right knee in service while in basic training on the obstacle course. It was primarily the right knee that kept getting worse but he had problems with both. He was cut military orders repeatedly during his six years of service in order to travel and participate in sports such as basketball, football and baseball. He was issued several elastic knee braces and one elastic and leather knee brace. He recalled a service doctor informing him that the bones in his knees weren't growing properly and he would need surgery. The veteran further testified that, following his discharge from service, he was treated at a VA hospital and at an Army medical facility that same year. Since 1971 until the present he had always heard "arthritic involvement" to describe his knee condition. In 1991 he complained of pain in his right leg from the knee to the groin; he was told his right hip had deteriorated and he would need a hip replacement. The VA treating physician thought there was a causal connection between his knee disorder and his right hip disorder. He had been diagnosed to have avascular necrosis of the right hip and that was supposedly causing his leg pain. Until the last couple of years, the veteran had just experienced knee pain. A written statement from a private physician, dated in October 1992, indicated that he had treated the veteran's injury to his left knee when he was sixteen years of age. Although there was no internal derangement shown on x-ray, a cast was applied to prevent overuse of the limb. He was advised to return to his usual activities without restriction after treatment was completed. A negative reply was received from the Army medical center at which the veteran claimed to have received treatment shortly after separation from service. VA outpatient treatment records, dated from 1976 to November 1991, show the earliest record of treatment was in 1976 for hemorrhoids. In August 1981, he was seen for left ankle pain after having been hit by a horseshoe. X-rays were negative. In July 1983 the veteran was treated for an ankle injury after he "slid into base" two days earlier. Throughout the 1970's and 1980's the veteran was treated for a variety of complaints to include a fractured left wrist; however, there is no reference in the medical records to any hip or knee disorder or disability. In June 1991 the veteran was treated for complaints of acute onset of pain three weeks prior while playing softball. In November 1991 he was seen several times in the emergency room and the orthopedic clinic with a complaint of constant pain in the right leg from the groin to the knee since May 1991. After x- rays and an MRI, the veteran was diagnosed to have avascular necrosis of the right hip. In December 1991 it was noted that the veteran complained that he had experienced right thigh pain since 1967 and it just became more significant in May 1991. In November 1992 the veteran was noted to be using his cane off and on and complained of worsening pain.. X-rays showed marked degeneration of the right hip. It was noted that the right hip would require a total hip replacement at some point. The veteran was afforded a VA medical examination in November 1992. The examination report noted a history of several injuries to both knees playing sports while in service. The veteran complained of current aching pain in both of his knees, especially in the right knee. The veteran's diagnosed vascular necrosis of the right hip was noted. The veteran stated his belief that his right hip disorder was associated with his right knee pain. Examination of the knees revealed full range of motion and no fixed deformities or defects. There was no subluxation of either knee joint. The veteran did have pain with range of motion of the knees. Tenderness was noted over the medial and lateral facet of the right patella. There was also tenderness on palpation over the center of the right patella. X- rays were ordered. The medical examiner concluded that: There is insufficient clinical evidence at the present time to warrant a diagnosis of any chronic disorder for the left knee. The [veteran] has chondromalacia of the right patella of the right knee joint. The [veteran] has idiopathic avascular necrosis of the right hip. This idiopathic avascular necrosis of the right hip is not secondary to his right knee pain, or his injury in the service 20 years ago. There is absolutely no reason to make an association of his right knee injury in the service with the idiopathic avascular necrosis of the right hip. There also is no scientific data to my knowledge that there is any association with any kind of knee problems with the development of avascular necrosis of the femoral head. The Board finds, based on the evidence of record, that service connection is not warranted for either a right knee or left knee disorder. As to the left knee, the Board notes that the recent VA medical examination found no chronic left knee pathology. As a grant of service connection requires a current disability, the Board finds that service connection must be denied for a left knee disorder. Thus, while the veteran gave some history of left knee pathology prior to service, and had some treatment for left knee complaints during service, these symptoms resolved without chronic residual impairment. This is confirmed by the recent examination report finding no chronic disorder of the left knee. As to a right knee disorder, the Board notes that although a history of knee pain was noted at the time of the veteran's service entrance examination, an actual diagnosis of a knee disorder was not made. In addition, the statement from the veteran's treating physician indicated that the veteran was released from treatment to resume full activities. Furthermore, the physician stated that he treated the veteran's left knee. Thus, the Board finds that the veteran must be presumed to have been sound at the time he entered service. Thus, the question is whether a chronic knee disorder was incurred in service. The Board finds that the service medical records do not show a chronic knee disorder during service. The veteran's complaints of knee pain were always related to a specific injury and appeared to resolve themselves with no chronic residuals. Moreover, the service separation examination was negative for any evidence of a knee disorder or disability. In addition, the evidence of record fails to show chronicity of symptomatology following service. There is no medical evidence of any complaint, finding, diagnosis or treatment of any knee disorder until 1991, approximately 20 years after discharge from service. The Board has considered the veteran's recent statements and testimony as to continuous knee pain since service; however, in light of the medical evidence of record. The Board notes that the veteran has indicated that his knee disorder prevented him from participating in sports after service, yet he was treated in 1983 for an injury incurred while playing softball, and again in 1991 it was noted that he first noticed his right leg pain after an injury during a softball game. Thus, the Board does not find the veteran's testimony to be credible with regard to the continuity of his symptoms since service. Moreover, the veteran was seen for a variety of complaints at VA facilities in the 1970's and 1980's, providing ample opportunity to mention knee pain complaints, if they were present. As noted, the records for those years are devoid of such complaints. Finally, the Board notes that there is no opinion on file which establishes any relationship between the chondromalacia found on recent examination and an in-service event or occurrence. Thus, the Board concludes that service connection must also be denied for a right knee disorder. The veteran has also claimed service connection for a right hip disorder. The Board notes that there is no evidence of a hip disorder or disability during service or for many years thereafter until the diagnosis of avascular necrosis in 1991. The VA medical examiner, in November 1992, opined that the veteran's diagnosed hip disorder was not related to any incident of service. With regard to the veteran's contention of secondary service connection, the Board notes that service connection has not been granted for a knee disability. In any event, the VA examiner also opined that the veteran's hip disorder was not medically related to the veteran's right knee disorder. Thus, service connection must also be denied for a right hip disorder. Therefore, the Board finds the preponderance of the evidence is against the veteran's claims for service connection for bilateral knee disorders and a right hip disorder. As such, the record does not present an approximate balance of positive and negative evidence with respect to the merits of the veteran's claims. Accordingly, the benefit of the doubt is not for application in this case. ORDER Service connection for a right knee disorder, left knee disorder and a right hip disorder is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.